Saturday, February 14, 2015

Kudos to Eric Dexhemier and Ciara O'Rourke at the Austin Statesman for undertaking an important investigation (Feb. 14) into police officer misconduct so severe that prosecutors can no longer use the offenders as witnesses in court cases. Unfortunately, their most important finding is that most such misconduct remains shrouded in official secrecy, veiled by dubious Attorney General opinions holding that the public cannot know which of their LEO employees are so discredited that prosecutors won't rely on their work. Their story opened:

Hundreds of law enforcement officers across Texas have such checkered
histories that prosecutors have vowed to refuse cases brought by them —
or, at the least, feel legally compelled to inform defense attorneys
that the officers’ histories of dishonesty may help their clients.

But,
for the most part, you can’t know who those cops are or what they did,
even though an American-Statesman investigation found that they have
resulted in the dismissal of dozens of criminal cases.

Here's their description of the project:

Beginning last summer, the newspaper asked each of the state’s
criminal district attorneys for copies of their so-called Brady lists,
as well as letters they had sent to law enforcement agencies alerting
them of local officers whose credibility was so shaky that they could
not be used in court as a witness. Many smaller, rural prosecutor
offices, especially, said they kept no list of suspect police officers —
at least not formally.

A number of elected prosecutors simply didn’t respond, ignoring state open records laws.

Several
released their letters and lists without restriction. Ellis County
District Attorney Patrick Wilson produced seven letters in which he said
he would no longer accept cases from named officers.

Then-Dallas
County District Attorney Craig Watkins compiled a spreadsheet of local
police officers whose histories of falsifying documents or questionable
behavior might compromise the credibility of their testimony. There are
192 officers on it, listed alphabetically. ...

A handful of
prosecutors agreed to disclose only the total number of suspect police
officers in their jurisdictions. Bexar County’s list has 65; Denton
County has 39.

Many larger offices — including Travis County
District Attorney Rosemary Lehmberg’s — fought the newspaper’s requests
to release any information, arguing to then-Attorney General Greg Abbott
that their records of officers with dubious credibility should not have
to be released because they are internal law enforcement communications
and thus exempt from Texas open records laws. Those included Harris,
Lubbock, Galveston, El Paso, Tarrant and Webb counties.

The Attorney General sided with law enforcement opacity on this question, but IMO that's a tremendously broad reading of Sec. 552.108 of the Public Information Act and the Statesman's attorneys would do well to sue to acquire these records. First, I think the recalcitrant prosecutors and the AG are legally in the wrong. Second, these records would provide fodder for potentially dozens of stories going forward that would make litigation worth the bang for the buck.

In the meantime, the Statesman should make public the records it did receive - particularly where prosecutors named names - and provide comprehensive, county by county totals of the number of officers on local DAs do-not-testify lists.

For cities which have adopted the state civil service code, the AG opinion lards on additional confusion regarding prosecutors and Brady disclosures when it comes to police misconduct. In most Texas law enforcement agencies, police disciplinary files are public records. But in about 73 agencies which have adopted the civil service code under chapter 143 of the Local Government Code, those disciplinary records are confidential, even to the local DA's office. So in those jurisdictions, prosecutors can't even know about most police misconduct. And now they've convinced the AG they don't have to disclose it to the public even when they do know an officer can't be trusted.

28 comments:

Anonymous
said...

This is the kind of information that defense lawyers should pass out to one another using websites. Anytime a defense lawyer catches a police officer, or a DA for that matter, in a lie, he should post the name and lie to a website for all to see.

@12:54 The Morton Act forbids defense attorneys sharing such information to the extent it is based on evidence or information produced in discovery. While there are no statutory penalties for disclosure there are likewise no penalties for the prosecutor that fails to produce. So the defense attorney's choice to share such information with the public may compromise her ability to receive production that helps her clients... and her duty is to her clients.

@12:11.I wasn't really suggesting sharing it with the public, but with other defense attorneys. Knowledge is power and the failure of defense attorneys to share data like the names of lying cops with each other hurts both their current clients and future clients. Since so few cases go to trial, the defense bar should have data on the biases of judges, how they rule on certain motions, biographical information about the prosecutors, and also suggestions on how to defend certain crimes.

Three years ago I was charged with a crime. I asked my attorney lots of questions about the judge, prosecutor, the officers who investigated me, the punishment given in similar cases. He also did not have any information about expert witnesses that I could interview.

He had none of this information, and I felt I lacked information I needed to make a good decision.

I'm a professional, and on the internet and through my professional organizations, I can find all sorts of seemingly trivial information that can be helpful. I didn't find similar information available to defense attorneys. I felt his lack of knowledge compromised his duty to me.

One random thought: since the US Constitution requires public trials, why isn't any information given to the defense that might be used at trial also public information. Also, when I made my first post, I wasn't thinking about discovery but about cops who lied on the stand in open court and who are never reprimanded much less prosecuted.

I have a stump speech that includes: "All cops lie, they get excited about getting a conviction and they lie to do so. Narcotics officers lie in most cases and vice officers lie in every case. They are trained to do so by prosecutors and often judges to testify all the elements of the offense and not to as what actually happened." I give a lot of speeches.

Anonymous: It sounds as though you had a pretty pathetic defense attorney - that sort of information is indeed readily obtainable and many lawyers would have no problem in compiling it in response to a client request (and would probably be compiling that information anyway). I am sorry you were ill-served.

The prosecution has access to a defendant's criminal history. Prior convictions may be used to enhance a new offense or to impeach the defendant if he testifies at trial.

Many law enforcement agencies keep internal records about every suspect and witness they interact with. In Austin, these records are known as "handle bys."

There should be an equivalent system where a criminal defense attorney can determine if the arresting officer has had a bunch of cases dismissed not just for dishonesty, but also for procedural defects like lack of probable cause, suppressed evidence, etc.

Some of you are pathetic, to say all officers lie would be like saying all lawyers are like Saul Goodman. I spent 11 years as a senior investigator for a criminal DA and I started our own Brady list without anyone even asking and I did this so we could weed out the gypsy cops. Furthermore, I went as far as advising the officer/deputy/trooper as to why they are on it and how it effects them. I believe it should be made a legal requirement and if done correctly it would be something sent to TCLEOSE for a hearing and then once due process has been done if the officer looses he goes on a State wide Brady list, similar to some of you pathetic cop hating lawyers who have grievances filled against you.

@12:28, I'm not sure I agree with you about the statewide list. If TCLEOSE kept it I'd fear there'd be no one on it.

I think it's handled fine at the local level. But the DA's office needs access to civil service disciplinary files to accurately make those judgments. They can't disclose problems which are systematically concealed from them.

Many of us do just what you suggest here in Harris County. Unfortunately as big as the Harris County Criminal Defense Lawyers Association is not everyone who is a member participates in this valuable information sharing and far too many defense attorneys are not members of this very helpful organization.

@12:28, thank you for getting your own Brady List together and seeing the need for it. Do you not see a problem that the ADAs nor the elected DA in your office saw a need to keep a Brady list or share that impeachment evidence with the defense? You seem to be a good guy, but are turning a blind eye to your colleague who were obviously skirting their duty under Brady. Bet you could not get the DA to let you post your list on their website.

I had a case where my client had a motion to adjudicate his deferred felony assault probation based on a bogus drug possession charge. I had a couple of cases with the same arresting officer which were dismissed and there was video showing the officer had lied about reasonable suspicon for one of the stops, exceeded the scope of a Terry pat down on another case and the video in the most current case of course did not show the reason for the stop because the officer followed for a couple of miles before intiating a stop claiming a signal violation way earlier before the 30 second video buffer. The I requested the states' files on those cases where the dismissal said "see states' file" for explaination of the dismissal which would of course document the da finding that the officer lied and broke laws to obtain evidence. This was before Michael Morton Act. They refused to produce the files because I would not sign a release agreeing not to use them for anything other than my current case. They eventually dismissed because they knew I would tear this cop a new one and they did not want to have me possibly get some good caselaw on their duty to produce this type of material. I don't know of any attorney that has been notified of this cop's unadjudicated wrong doing. This Information needs to be posted statewide so these officers cannot keep bouncing from one agency to another often changing counties and avoid being exposed as a Brady cop. The DAs hide this material when it is in their own files. The DAs are certainly not trying to get Brady material from the police files. They are complicit as demonstrated by their handling of their own evidence of bad cops and other state witnesses.

@2:16, it strikes me that the odds are the cop's supervisors were never notified and nobody ever filed a complaint with the PD over those episodes, if you didn't. The DA's office wouldn't, and it sounds like nobody else would have had the info.

I don't hear of CDLs filing complaints against cops too often, though they're the outsiders most likely to notice, much less be able to document, police misconduct. Maybe there'd be merit in taking that extra step when you run across it. That's no substitute for prosecutors handing over impeachment material on cops, but at least it'd have provided an extra possibility for him to be held accountable.

Let's say I work in a DA's office, which I do. There are officers I don't trust, but it's because I've suspected them of making things up or exaggerating things in the past. It's not because I've caught them committing perjury or falsifying evidence. The things they say that I suspect aren't true -- I can't prove they're not true. Strange things really do happen, regardless of whether I believe them, and cops are forced into some pretty surreal situations sometimes. And, of course, sometime cops lie.

Why should my unproveable suspicions be used to deprive others of livelihood and credibility? This is putting more power and control into the hands of prosecutors. That it gives me power over police officers shouldn't take away from the fact that it gives me power. Perhaps I use it for good and out some bad cops. Perhaps, in good faith, I put some good cops on the list because something crazy happened to them and I didn't believe it. Or perhaps I see a cop whose career and financial well-being could be ruined by one word from me, so I tell him what I need to hear and put him on the stand.

I agree with 2:28. We should probably do something like this, but it should certainly involve due process for the cops. And that's going to result in a lot of dropped allegations.

@10:24, you already have that power. It's called "discretion" and prosecutors may exercise it whenever they believe a state's witness is non-credible and choose not to put them on the stand. It's not a function of some statewide list but of your own good judgment and that of your boss.

One problem with such lists is discussed repeatedly in the comments section, that of who decides what information is accurate and how it is used. I'm sure that a great many who read this blog believe all cops are liars based on the comments which translates to all cops are beneath our collective contempt. That may be overstating the matter a bit, in the past Grits pointed out he does not take that stance, but the truth is, not everyone sees things the same way and most of us have flawed memories.

Those of us who are married know exactly what I mean when our spouse throws some obscure tidbit in our face during an argument, bringing up their version of an event that we saw very differently. Which is lying? Perhaps neither and that is similar to the problems with eye witness testimony. Automatically claiming a statement is a lie is a convenient way for the lazy to dismiss the other possibilities such as honest mistakes, differing perceptions, and heat of the moment recollections.

The reason why it bothers some of us so much is that juries have a tendency to give the police much more credit in terms of memories than the rest of us that put our pants on one leg at a time. Are there police that consciously lie to get convictions? Sure but not as many as some of you seem to think given the limited scope of your comments.

The fact remains, some police have a better command of the facts and/or testifying in court. If a case hinges solely on an officer that isn't the sharpest tool in the shed, rather than plot to destroy him on the stand, just use that to your advantage while defending your client because going too far can raise tremendous sympathy for the state as I've seen firsthand.

But to those like Anon 04:05 AM, it'd be great if you had access to just how shady your attorney was, how capable the ADA was, the type of judge you had and the credibility of all the witnesses in making your decision.

Ray Hill believes they all lie but coming from a convicted felon, that is not surprising. Do most DA offices use such lists? I doubt it, preferring to keep such as informal as possible given the likelihood bad information gets placed on it from the sour grapes crowd when they lose.

I actually I had two lengthy discussions with the seargent in charge of IA regarding this officer's overstepping of the fourth amendment. I believe the officer was coached as a result of those discussions. I did not file a written complaint because I have found that to be a complete waste of time and effort just as filing written complaints to the Public Integrity division of the HCDAO is. They would not turn over records of the "coaching" regarding 4 th Amendment violations that I had video of, nor would they charge him with perjury or official oppression. If the violation is not backed up with a conviction, it is as though the wrong doing did not occur even when the officer was disciplined. The story you posted is just the tip of the iceberg. The civil service jurisdictions are getting away with wholesale corruption. If they were not hiding behind a corrupt legal shield Houston would be reporting as much or more corruption than Dallas and the other agencies that responded to the FOIA requests.

DAs are unwilling to keep this information that implicates officers in wrong doing in the form of a Brady List even when there are no sour grapes as when the case is dismissed for police misconduct because they agree it occurred. They hope to keep it quiet so as not to interfere with obtaining other convictions with the same officer.

Anon 2/16/2015 11:53:00 AM, Sergeants are low level supervisors, not officials "in charge" of anything such as IA. Further, few departments coach their officers when a complaint comes in, that is why their unions hire lawyers. They are rightly allowed access to whatever statements and evidence is used against them but perhaps your case was different than the thousands of others out there.

Anon 7:19The department I referred to earlier had a sergeant that the chief referred me to regarding my complaints against officer Arenivas of the LaPorte TX police department. It is a small department and I assure you that this person handled all internal affairs investigations. I know a good friend of this officer whom I believe to have been coached and believe him when he tells me he caught a rash of shit over it. They were offering my guy 4 years on a motion to adjudicate a felony assault. They finally dropped it after hiding evidence for a year which I finally got and it was dismissed when this officer would not show up and testify against my client because he had committed so many violations of the Fourth Amendment on video. BTW you come across as a know it all who doesn't.

Anon 2/16/2015 08:16:00 PM, In LaPorte, they assign a sergeant to investigate internal affairs complaints but the final call is left to their Chief in ALL cases. As such, the low level supervisor is not "in charge of IA" and for the record, when his findings are disputed by his supervisor, he is then told him to "dig deeper" and reopen whatever investigation his Lt and chain of command found faulty.

@10:24, what did you mean by "...so I tell him what I need to hear and put him on the stand"?

You also said “Why should my unproveable (sic) suspicions be used to deprive others of livelihood and credibility? “Why should your unprovable suspicions be kept secret and/or uninvestigated and deprive a defendant of a fair trial? My God man, this is not about your beliefs. This is about a fair trial and the belief beyond a reasonable doubt of the collective jury.

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